Via Kafila: (En) Gendering a Rights Revolution: Siddharth Narrain

The first is the recognition of a third gender category for hijras or equivalent cultural identities in order to facilitate legal rights.

The second is that transgender persons, for the purposes of the law, should be able to identify in the gender of their choice, which could be male, female or a third gender category.

In the operative part of the judgment, the court the Court held that hijras and eunuchs be treated as a “third gender” to safeguard their fundamental rights.

The Court also held that and transgender persons have the right to decide their self identified gender.

[…]

One of the most innovative parts of the judgment is the Court’s reading of Article 19 (1) a, the right to freedom of speech and expression to include the right to expression of one’s self identified gender.

No person can be told how to dress subject to restrictions in Article 19(2) (which include ‘public order, decency and morality).

This is a bold move and identifies the link between gender identity and dress, words, action and behaviour.

This is especially important in the context of discrimination against transgender persons who challenge accepted binary forms dressing, and behaviour.

[…]

Again, in stark contrast to the judges in Koushal, the Court observed that the role of the judiciary is not only to decide disputes but also to uphold the rule of law and ensure access to justice to marginalized sections of society, to which transgender persons clearly belong.

[…]

This is a moment that needs to be celebrated and applauded.

It is now up to the legislature and Indian citizenry in general to translate these constitutional norms into laws, policies and regulations.

This significant victory has to go hand in hand with a renewed political struggle for transgender rights.

If not, the social revolution that this judgment portends will remain a dream etched on legal paper.

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